REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE [DOCKET NO. 12]

Honorable Jacqueline Chooljian, UNITED STATES MAGISTRATE JUDGE.

This Report and Recommendation is submitted to the Honorable S. James Otero, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

I. SUMMARY

On August 26, 2013, Juan D. Alvarez (" petitioner"), a state prisoner who is proceeding pro se, filed a Petition for Writ of Habeas Corpus (" Petition") challenging a 2011 conviction in Los Angeles County Superior Court on multiple grounds.

On March 7, 2014, respondent filed a Motion to Dismiss the Petition (" Motion to Dismiss" or " MTD") arguing that Grounds One and Two of the Petition (to the extent they raise cognizable federal claims) and Grounds Four and Five of the Petition are unexhausted, rendering the Petition " mixed" and subject to dismissal.[1] (MTD at 4-7). Petitioner has not filed an opposition to the Motion to Dismiss and the deadline to do so has long since expired.

For the reasons explained below, this Court concludes that (1) the state-law predicates of petitioner's claims are not cognizable, subjecting such predicates to dismissal without prejudice; and (2) the federal predicates of Grounds One and Two of the Petition are unexhausted and the entirety of Grounds Four and Five of the Petition are unexhausted, rendering the Petition " mixed" and subject to dismissal without prejudice. Accordingly, this Court recommends that (1) the state-law predicates of petitioner's claims be dismissed without prejudice; and (2) the Petition be dismissed without prejudice unless prior to the deadline to file objections to this Report and Recommendation, petitioner files a First Amended Petition for Writ of Habeas Corpus omitting the unexhausted predicates and claims or otherwise notifies the Court that he elects to dismiss/otherwise abandon such predicates and claims.

II. PROCEDURAL HISTORY

A. Conviction and Direct Appeal

On or about April 5, 2011, a Los Angeles County Superior Court jury convicted petitioner of robbery and possession of a dirk or dagger. (Petition at 2; Lodged Doc. 2 at 2; Lodged Doc. 5 at 150-50A). On June 6, 2011, the trial court sentenced petitioner to 20 years and four months in state prison. (Petition at 2; Lodged Doc. 2 at 2; Lodged Doc. 5 at 169-71).

On May 24, 2012, the California Court of Appeal affirmed the judgment in a reasoned decision. (Petition at 3; Lodged Doc. 2).

Petitioner, through counsel, thereafter filed a petition for review in the California Supreme Court (" Petition for Review"), claiming: (1) the trial court's denial of petitioner's Pitchess motion[2] as to Officer Gibbs was erroneous and deprived him of his right to a fair trial; [3] (2) this court must review the record of the " in camera" hearing to determine whether the trial court abused its discretion by ruling that personnel records of Officer Vasquez did not contain information that should have been disclosed; [4] and (3) because the object petitioner possessed does not fall within the statutory definition of a dirk or dagger, petitioner's conviction for possession of a dirk or dagger is not supported by sufficient evidence and therefore violates petitioner's constitutional right to due process.[5] (Lodged Doc. 3). On August 8, 2012, the California Supreme Court denied review. (Petition at 3; Lodged Doc. 4).

The record does not reflect that petitioner sought further direct review in the United States Supreme Court.

On August 4, 2013, petitioner constructively filed the State Habeas Petition in Los Angeles County Superior Court raising two claims: (1) petitioner's robbery conviction should be reversed due to his actual innocence under the Due Process Clause of the state and federal constitutions; and (2) petitioner was denied effective assistance of appellate counsel in violation of his rights under the state and federal constitutions because such counsel failed to raise an actual innocence claim. The record does not reflect a disposition for the State Habeas Petition.

C. Federal Petition

As noted above, on August 4, 2013, petitioner constructively filed the Petition in the instant federal action. The Petition raises five grounds: (1) the trial court's denial of petitioner's Pitchess motion as to Officer Gibbs was erroneous and deprived him of his right to a fair trial in violation of the Due Process Clause of the state and federal constitutions (Ground One); (2) this Court must review the record of the " in camera" hearing to determine whether the trial court abused its discretion by ruling that personnel records of Officer Vasquez did not contain information that should have been disclosed according to the Due Process Clause of the state and federal constitutions (Ground Two); (3) because the object petitioner possessed does not fall within the statutory definition of a dirk or dagger, petitioner's conviction for possession of a dirk or dagger is not supported by sufficient evidence and therefore violates petitioner's right to due process under the state and federal constitutions (Ground Three); (4) petitioner's robbery conviction should be reversed due to his actual innocence under the Due Process Clause of the state and federal constitutions (Ground Four); and (5) petitioner was denied effective assistance of appellate counsel in violation of his rights under the state and federal constitutions because such counsel failed to raise an actual innocence claim (Ground Five). (Petition at 5-15).

III. DISCUSSION

A. The State-Law Predicates of Petitioner's Claims Should Be Dismissed

As noted above, all of petitioner's claims are predicated on asserted violations of both the state and federal constitutions. However, petitioner's claims are not cognizable on federal habeas review to the extent they are predicated on violations of the California state constitution. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (it is not province of federal habeas court to re-examine state-court determinations on state-law questions; in conducting habeas review, federal court limited to deciding whether conviction violated Constitution, laws or treaties of the United States). Accordingly, such state-law predicates of petitioner's claims should be dismissed without prejudice.

B. The Remaining Federal Predicates of Grounds One and Two and the Entirety of Grounds Four and Five Are Unexhausted

Title 28, United States Code, section 2254(b)(1), explicitly provides that a habeas petition brought by a person in state custody shall not be granted unless it appears that:

(A) the applicant has exhausted the remedies available in the courts of the State; or

(B) (i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

Exhaustion requires that a petitioner's contentions be fairly presented to the state courts, and be disposed of on the merits by the highest court of the state. See Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004); James v. Borg, 24 F.3d 20, 24 (9th Cir.), cert. denied, 513 U.S. 935, 115 S.Ct. 333, 130 L.Ed.2d 291 (1994). A claim has not been fairly presented unless the petitioner has described in the state court proceedings both the operative facts and the federal legal theory on which his claim is based. Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995); Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982); Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999). The petitioner must also alert the state court that his claim rests on the federal constitution. Howell v. Mississippi, 543 U.S. 440, 443-44, 125 S.Ct. 856, 160 L.Ed.2d 873 (2005) (per curiam); Fields v. Waddington, 401 F.3d 1018, 1020-21 (9th Cir.), cert. denied, 546 U.S. 1037, 126 S.Ct. 738, 163 L.Ed.2d 579 (2005). To do so, the petitioner " must make reference to provisions of the federal Constitution or must cite either federal or state case law that engages in a federal constitutional analysis."
Fields, 401 F.3d at 1021 (citations omitted); see also Howell, 543 U.S. at 443-44 (claim unexhausted where petitioner's state court petition did not cite the U.S. Constitution or any cases directly construing the U.S. Constitution); Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc) (" [F]or purposes of exhaustion, a citation to a state case analyzing a federal constitutional issue serves the same purpose as a citation to a federal case analyzing such an issue.").

For purposes of exhaustion, counseled petitions in state court may, and sometimes should, be read differently from pro se petitions.
Peterson, 319 F.3d at 1159. When a document has been written by counsel, a court should be able to attach ordinary legal significance to the words used in that document.
Id.

Respondent contends that the federal predicates of Grounds One and Two and the entirety of Grounds Three and Four of the Petition are unexhausted. This Court agrees.

The federal (and only cognizable) predicates of Grounds One and Two of the Petition are unexhausted because petitioner did not fairly present such federal predicates to the California Supreme Court in the Petition for Review -- the only document challenging the judgment in issue which petitioner filed in the California Supreme Court. As noted above, the first and second claims of the Petition for Review -- which allege that the trial court's denial of petitioner's Pitchess motion as to Officer Gibbs was erroneous and deprived him of his right to a fair trial and that the court was required to review the record of the " in camera" hearing to determine whether the trial court abused its discretion by ruling that personnel records of Officer Vasquez did not contain information that should have been disclosed -- do not reference the United States Constitution or any federal law. Although such claims do argue that petitioner was deprived of his right to a " fair trial, " mere references to broad constitutional principles such as " due process" and a right to a " fair trial" are insufficient to fairly present federal constitutional claims and could as easily refer to the due process/fair trial guarantees of the California Constitution (Cal. Const., art. I, § 7, subd. (a); Cal. Const., art. I, § 15).
See Adams v. Robertson, 520 U.S. 83, 89 n.3, 117 S.Ct. 1028, 137 L.Ed.2d 203 (1997) (per curiam) (passing invocations of " due process" which fail to cite the Federal Constitution or any cases relying on the Fourteenth Amendment could just as easily have referred to due process guarantees of the state constitution and thus did not meet minimal requirement that it must be clear that a federal claim was presented to state court); Fields, 401 F.3d at 1021 (federal claim is not exhausted by a petitioner's mention of a " broad constitutional concept, such as due process"); see also Robinson v. Schriro, 595 F.3d 1086, 1103 (9th Cir.) (noting that petitioner's was not a case where there was a failure to make clear that he was invoking a federal right, as where there is a " mere reference to 'due process' and citation to state case law" which did not involve the federal constitutional claim at issue, or a " general appeal to a constitutional guarantee") (citations omitted), cert. denied, 131 S.Ct. 566, 178 L.Ed.2d 427 (2010). Moreover, the portions of the state cases cited and relied upon in the Petition for Review in connection with such claims do not engage in a federal constitutional analysis. Accordingly, the federal predicates of Grounds One and Two have not been exhausted.

Grounds Four and Five are unexhausted because such claims have not presented to the California Supreme Court at all -- a fact conceded by petitioner. (Petition at 15).

The exhaustion requirement may be satisfied if a petitioner's unexhausted claims are clearly procedurally barred under state law. See Castille v. Peoples, 489 U.S. 346, 351-52, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989); Johnson v. Zenon, 88 F.3d 828, 831 (9th Cir. 1996). In this case, however, it is not " clear" that the California Supreme Court would deem the unexhausted predicates of Grounds One and Two and the unexhausted claims asserted in Grounds Four and Five procedurally barred under state law if petitioner were to raise them in a habeas petition in the California Supreme Court. See In re Harris, 5 Cal.4th 813, 825, 21 Cal.Rptr.2d 373, 855 P.2d 391 (1993) (" [H]abeas corpus has become a proper remedy in this state to collaterally attack a judgment of conviction which has been obtained in violation of fundamental constitutional rights.") (citations omitted); People v. Sorensen, 111 Cal.App.2d 404, 405, 244 P.2d 734 (1952) (claims that fundamental constitutional rights have been violated may be raised by state habeas petition). This Court expresses no opinion regarding whether consideration of a state habeas petition might be foreclosed by the principles discussed in In Re Clark, 5 Cal.4th 750, 763-87, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993). The California Supreme Court should evaluate the matter in the first instance. Even if an applicable state procedural bar exists, the California Supreme Court nevertheless might choose to reach the merits of petitioner's unexhausted predicates/claims.
See, e.g., Park v. California, 202 F.3d at 1151-52.

In light of the foregoing, petitioner has failed to meet his burden to demonstrate that the federal (and only cognizable) predicates of Grounds One and Two have been exhausted or that Grounds Four and Five have been exhausted. The Court therefore concludes that such predicates and claims are unexhausted.

3. Disposition of " Mixed" Petitions

Because the Petition contains both exhausted and unexhausted claims, and is therefore " mixed, " the Court must further assess the appropriate disposition of the Petition as a whole. A district court generally must dismiss mixed habeas corpus proceedings, that is, proceedings which raise both exhausted and unexhausted claims. Rose v. Lundy, 455 U.S. at 522. However, a court may not dismiss a mixed petition without first permitting the petitioner the opportunity to amend the petition to delete unexhausted claims. Jefferson v. Budge, 419 F.3d 1013, 1015-16 (9th Cir. 2005) (citations omitted). Petitioner is being provided with such an opportunity by virtue of this ruling. Accordingly, the Petition should be dismissed without prejudice and judgment entered accordingly, unless prior to the deadline to file objections to this Report and Recommendation, petitioner files a First Amended Petition for Writ of Habeas Corpus omitting the unexhausted predicates and claims or otherwise notifies the Court that he elects to dismiss/otherwise abandon such predicates and claims.

IV. RECOMMENDATION

IT IS THEREFORE RECOMMENDED that the District Judge issue an Order: (1) approving and accepting this Report and Recommendation; (2) dismissing the non-cognizable state-law predicates of petitioner's claims; (3) granting the Motion to Dismiss; and (4) dismissing the Petition and this action without prejudice, and ordering that judgment be entered accordingly unless, prior to the deadline to file objections to this Report and Recommendation, petitioner files a First Amended Petition for Writ of Habeas Corpus omitting the unexhausted predicates and claims or otherwise notifies the Court that he elects to dismiss/otherwise abandon such predicates/claims. [7]

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